R v A (No 3) - [2015] NSWSC 79

Supreme Court

New South Wales

Medium Neutral Citation: R v A (No 3) [2015] NSWSC 79
Hearing dates: 17 February 2015
Date of orders: 17 February 2015
Decision date: 17 February 2015
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [14]

Catchwords: CRIMINAL LAW – evidence – where police unsuccessful in serving a subpoena on a witness – where Crown sought to tender passages of the statement of the witness in her absence – no prior notice given to accused until the day on which the application was made – where counsel for the accused had instructions to cross-examine the witness as to credit – where opportunity to cross-examine would be lost – evidence excluded
Legislation Cited: Evidence Act 1995
Cases Cited: Bakerland Pty Limited v Coleridge [2002] NSWCA 30
Ordukaya v Hicks [2000] NSWCA 180
R v A (No. 2) [2015] NSWSC 76
R v Clark [2001] NSWCCA 494
R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 184
Category: Procedural and other rulings
Parties: Regina - Crown
Representation:
Counsel:
Mr C Maxwell QC - Crown
Mr W Terracini SC and Mr P Stitz - Accused
Solicitors:

File Number(s): 2013/194634
Publication restriction: Nil

Judgment (EX TEMPORE – REVISED)

The trial of the accused is currently in its third week. I have been informed that the Crown case is likely to close today. One of the remaining witnesses to be called by the Crown is the officer in charge of the case, Detective Olivaires, through whom the Crown will seek to lead evidence which is not in dispute.
However, the Crown has also sought to tender paragraphs [59] to [67] of a statement of JT dated 29 August 2012. Leaving aside issues of form, those paragraphs constitute evidence of previous instances of alleged neglect on the part of the accused towards the deceased. The admissibility of such evidence has been the subject of a previous ruling in which I concluded that subject to it being led in an admissible form, it was admissible as context evidence: R v A (No 2) [2015] NSWSC 76.
In support of the application the Crown tendered a statement of Detective Olivaires dated 16 February 2015 which set out, in general terms, the efforts which have been made to serve a subpoena on the witness in the period leading up to the trial. I am satisfied, having read that statement, that the police have made their best efforts to locate, and serve a subpoena on, the witness. Despite those efforts, they have been unable to do so.
In addition to attempting to personally serve the subpoena on the witness, numerous phone calls have been made to try and contact her. Enquiries have also been made through her mother as to her whereabouts. Detective Olivaires has expressed the opinion in his statement that the witness is avoiding service. Whether or not that is the case, it is abundantly clear that she cannot be located despite the best efforts of police.
In those circumstances the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A (No 3)

Details

AGLC: R v A (No 3) [2015] NSWSC 79
Case: [2015] NSWSC 79
Decision Date: 17 February 2015

CaseChat Overview and Summary

The case of R v A (No 3) arose in the Supreme Court of Victoria, where the Crown sought to tender statements from a witness who had not been served with a subpoena. The witness, who had not appeared in court, had not been given notice of the Crown's intention to tender her statement until the day of the application. The accused, represented by counsel, had been instructed to cross-examine the witness as to her credit, but the opportunity to do so would be lost if the statement was admitted. The primary legal issue was whether the court should admit the witness's statement in her absence, particularly given the lack of notice to the accused and the potential impact on their right to cross-examine.

The court considered the principles of fairness and the right to a fair trial as enshrined in the common law. The Crown argued that the witness's absence was due to circumstances beyond their control, and that the statement was relevant and necessary for the case. However, the court found that the lack of notice to the accused significantly undermined the fairness of the process. The court held that the accused's right to cross-examine the witness was a fundamental aspect of a fair trial, and the absence of notice effectively deprived the accused of this right. Consequently, the court ruled that the evidence should be excluded.

In light of the above, the Supreme Court of Victoria determined that the admission of the witness's statement in her absence would be unjust and prejudicial to the accused. The court emphasised the importance of ensuring that all parties are afforded a reasonable opportunity to prepare and respond to evidence, particularly in a criminal trial where the stakes are high. The court's decision underscored the necessity of adhering to procedural fairness and the rights of the accused under the law. The final orders of the court were that the witness's statement be excluded from evidence, thereby preserving the integrity of the trial process.

Orders